Hungarian Constitutional Court goes against its own previous position: legal gender recognition remains impossible
The Constitutional Court on February 2, 2023 finally rendered its decision in one of the pending cases on the impossibility of legal gender recognition for trans people. The decision ignores the Court's own previous decisions and unequivocally contradicts international human rights standards. Háttér Society is taking the cases to Strasbourg.
In June 2021, a judge decided to suspend the case in front of them and petition the Constitutional Court, arguing that the provision of the Act on Registry Procedures, which makes it impossible to amend the sex at birth, is in violation of the Fundamental Law. The judge submitted that the impugned provisions are contrary to the right to human dignity and respect for private life. After one and a half years of silence, the Constitutional Court has finally ruled on the judge’s petition that challenged the law as amended by Section 33.
The Constitutional Court's decision perfectly illustrates how fundamental rights issues can be reduced to mere legal technicalities. The majority of the Constitutional Court, in order to meet the government's expectations and keep the contested rule in force, even went against its own decision of five years ago. In its 2018 ruling, which found an unconstitutional omission in the context of a constitutional complaint by a client of Háttér Society, it stated that "(...) every person has an inalienable right to bear their own name representing their (self-)identity. (...) The name changing connected to the change of gender is a special case of the above: it is based on the identity of "HUMAN" and the inviolability of equal human dignity.”
The decision also completely disregards the position of the National Authority for Data Protection and Freedom of Information, which objected to the impossibility of legal gender recognition, the amicus curiae brief of the Hungarian Psychological Association on the extremely harmful health effects of the current regulation, the relevant ECHR case-law, which is clearly contrary to the decision, and international human rights standards. Contrary to its usual practice, the arguments put forward in the amicus curiae submissions were not even summarized by the Constitutional Court in its decision, merely to maintain its weakly founded arguments.
The decision makes the connection clear between the ninth amendment to the Fundamental Law (by referring to the notion of ‘sex at birth’ as a one contained in the Fundamental Law), the government’s anti-LGBTQI campaign and Section 33, which was adopted in a rush without public consultation during the first wave of the pandemic. The decision unjustifiably draws a distinction between those who submitted their application before 29 May 2020 and those who did so on or after 30 May 2020. While those in the former group will have their applications processed thanks to the 2021 Constitutional Court decision annulling the retroactive application of the law, today's decision gratuitously and cynically denies everyone else the opportunity to do so.
By refusing to take a position on the issue, the Constitutional Court is depriving thousands of people of the opportunity to live their daily lives with documents that reflect their gender identity. Contrary to the Constitutional Court's position, the legal recognition of gender does not only affect the intimate sphere of the individual. For transgender people, having their name and gender correctly indicated on their documents has a fundamental impact on their everyday safety: without it, they face harsh workplace and healthcare discrimination, have to explain themselves every time they present their university degree, can be accused of stealing when they use their credit cards and questioned whenever they use their ID to pick up a package from the post office. They are forced to come out and talk about their gender identity when they show their ID card, if the name on it does not match their appearance, or in any situation where they have to use their registered name, and their right to privacy is violated on a daily basis.
"It is incomprehensible why a system that has worked well for 20 years had to be destroyed by a single amendment to the law, thereby removing the possibility of legal gender recognition for good. While Europe is steadily moving towards identity-based legal protection and recognizes the right to legal gender recognition as an integral part of the right to private life, the Hungarian government’s practice sanctioned by the Constitutional Court is one of total disenfranchisement. We believe that everyone has the right to change their gender and name, and we will continue our fight before the European Court of Human Rights" - commented Eszter Polgári, Legal Program Director of Háttér Society.
Háttér Society is therefore asking all transgender and intersex people who wish to have their gender officially recognised and take part in international litigation to contact the association's legal helpline at email@example.com.